A Brief History of Copyright and Innovation

From the framers of the Constitution, who were worried about books and pamphlets, to present-day stakeholders, who are concerned about DVDs, MP3s, and the Internet, the story of copyright law is an ongoing struggle to balance copyright holders' rights with the public interest. New technologies constantly challenge that balance.

In this lesson, students will examine the historical relationship between copyright law and technological innovation in the U.S. Working in teams, they will research a technology and assess how it may have affected users and copyright holders, as well as whether or not a public controversy resulted from its use. With this historical context in mind, students will then examine current copyright policy debates about music downloading and file-sharing.

Notes for the Educator

Modern copyright dates back to the English Statute of Anne, enacted in the 18th century, which gave authors an exclusive right, for 14 years, to copy and distribute their works. The right could be renewed just once, if the author was still alive when the right expired. The Framers of the U.S. Constitution considered this right important enough to include in the Constitution: Article 1, Section 8 of the Constitution authorizes Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In 1790, Congress passed the first U.S. Copyright Act, which, like the Statute of Anne, gave authors an exclusive copyright for a 14-year term, with the possibility of renewal for another 14-year term. U.S. Copyright has undergone two major revisions since – in 1909 and 1976 – but has also been incrementally amended, particularly in recent years. One steady trend has been the lengthening of the copyright term from "14 + 14" to, as of 1998, "life + 70" (the life of the author plus 70 years).

Additional Context

Copyright law has always been a balancing act between the rights of creators and the rights of the public. As each new technology emerges, and as each new revision is made to copyright law, the balance shifts. It is along this edge of copyright that innovation flourishes, often leading to additional changes in the law.

For example, in 1976, Universal City Studios and the Walt Disney Company sued Sony, seeking to have the Betamax VCR impounded as a tool of piracy. In their view, there were virtually no noninfringing uses of the VCR, since home taping of television was thought to violate the copyright owner's reproduction right. The Supreme Court in 1984 disagreed, ruling that home taping of television programs for later viewing ("time-shifting") constituted a fair use.

Two aspects of the Betamax case are important for our purposes. First, most copyright scholars at the time felt that home taping would not qualify as fair use. In particular, a court had never before found a use to be fair where (1) the copyist reproduced the entirety of a work and (2) did so for a purely consumptive, nontransformative purpose. So, had you considered the shape of the fair use doctrine in 1976, you would probably have concluded that time-shifting was not a fair use. The Supreme Court in 1984 expanded the fair use doctrine in response to the new possibilities created by the VCR.

Speckled throughout the history of copyright law, the same pattern arises – wherever an activity has been deemed a fair use (and often even before, so long as a company is willing to gamble that it will be deemed a fair use), innovation flourishes as technology companies help the public to make the most of copyrighted works. Examples include the photocopier, the audio cassette deck, the CD-RW drive, and the web browser, among others. With the introduction of each new technology, copyright law is tested and evolves. This lesson should help students think about the current state of copyright's evolution in relation to the new technologies they use in their daily lives, such as P2P, YouTube, Facebook and MySpace.

Objectives for Students

  • Compare and contrast two key moments in the history of U.S. copyright legislation.
  • Identify and analyze the historical roles that industry, government, authors/artists, and the common citizen have played in copyright history.
  • Clearly and effectively state opinions and facts either in an open debate or in a written format.

Activity Highlights

Starting the lesson with a question-and-answer review of Lesson 1's homework readings and the History Worksheet will help the class develop a solid footing in copyright basics before examining the effect that copyright law has on innovation and technology.

The in-class research activity has students work in groups, using the Law and Technology Timeline to guide research into technologies like the VCR, record albums, peer-to-peer file sharing software, etc. The Technology History Worksheet asks students to identify the key attributes of their assigned technologies and to consider how each technology empowered users in ways that copyright holders found to be counter to their interests. The student groups are encouraged to report their research findings in class, and pairs of groups are encouraged to talk about how their technologies are similar and different. The following notes may be helpful in leading the students to discuss the controversial aspects of the technologies.

Technology comparisons:

  • VCR vs. Napster/Grokster
      Similarities
    • Both technologies can be used to copy and share copyrighted work.
    • Both technologies revolutionized personal use of entertainment media.
    • Both made new forms of sharing possible:
      • An individual could use the VCR to record a TV program and lend it to neighbors, or even show it to a group at a community center or a church hall.
      • An individual could use peer-to-peer file sharing to share music files with friends and acquaintances.
    • Both technologies led to public legal controversies over whether or not copyright law should restrict the technology or limit aspects of the technology's development and use.
      Differences
    • Sharing a recording made on a VCR requires the exchange of physical media, which ultimately limits the number of copies that can be made. On the other hand, sharing via peer-to-peer software facilitates copying between many networked computers.
    • With respect to the VCR, the Supreme Court of the United States found that "time-shifting" (copying copyrighted TV shows for the purpose of watching them later) was a fair use.1 With respect to file-sharing software, the Supreme Court found that it was illegal for developers to "induce" users of its software to commit copyright infringement.
  • LP (long play) album vs. MP3 files
      Similarities
    • Both technologies are used as a means of recording and playing music.
    • Both media could be transferred onto different formats and shared with others.
      Differences
    • LPs are physical media, whereas MP3 files are digital media. Digital media can be flexibly manipulated by a computer, whereas physical media can be much harder to copy, rearrange, and alter.
    • The resale of a used LP is a straightforward transaction protected by the first sale doctrine (it is legal to resell a copyrighted work that is lawfully acquired), whereas the ease of copying MP3 files means that resale of a purchased MP3 isn't as straightforward of a transaction.
    • Once purchased, LPs could be used by the consumer in many ways with few restrictions. MP3s, however, have until recently been sold with attempts to create legal, contractual, and technological restrictions on future uses.

For homework, students will be introduced to the modern copyright debate by representing a particular group (assigned by the educator), researching the group's opinions and arguments, and answering questions from the Stakeholders Worksheet. This will help prepare students for later assignments leading up to the mock trial in Lesson 5.

Resources

For the Educator

For the Student (in-class)

For the Student (homework)

Additional Reading

Lesson Activities

  1. (10 minutes) After the students hand in the History Worksheet homework, start a general discussion using the readings as reference points.
    • Why did the framers include copyright in the Constitution?
    • What are the authors' points of view? Do you agree with them?
    • Are current copyright laws holding up the framers' original balance between creators and the public commons?
    • What do you think the framers would say about the current state of copyright laws and technology?
    • What would the framers think about the Internet and file sharing?
    • Why is copyright law important? What, if anything, would you change about the law?
  2. (25 minutes) Place students in groups and assign each group a technology or invention from the Law and Technology Timeline. Consider assigning contrasting technologies – like the VCR for one group and peer-to-peer file sharing software to another group – allowing for comparative discussions later in the lesson. Have each group spend some class time researching the history of their technologies and writing down answers to the questions in the Technology History Worksheet.
  3. (20 minutes) Allow some time for each group to share its research with the class. Ask groups to compare and contrast their findings with the information gathered by other groups.
  4. (5 minutes) Hand out the Stakeholders Worksheet and explain the homework assignment.

Homework

Assign each student a present-day interest group from the second page of the Stakeholders Worksheet and have that student assume that group's perspective on the question of music downloading and filesharing. Students' research should focus on the following issues for sharing with the class at the beginning of the next session:

  • What is your group's opinion on the current state of copyright law?
  • Do you advocate strengthening, maintaining, updating or abolishing the law? Why? What are the benefits?

Assessment

Students will hand in their Copyright History Worksheets at the beginning of class and the Technology History Worksheets at the end of class.

Extension Ideas

Ask each student to research and write a 1-2 page position paper about an important moment in copyright law.
  • The students can take the voice and perspective of one of the parties involved in a precedent-setting legal case.
  • The students can focus on a particular early technology, discussing how copyright law helped or hindered its development.
  • The students can create their vision of the future of copyright law and technology: what should change about copyright law, if anything?